This is Not a Drill: 2020 in Review
A year ago — on December 18 2019 — I learnt that I had lost at my employment tribunal.
I can’t remember much about that day. I know I had conversations with my legal team about the next steps in appealing, and I know I read the awful judgment over and over: “unworthy of respect in a democratic society”. I know I posted an update. I know I cried.
The next day my world tipped again when JK Rowling tweeted #IStandWithMaya.
My case became an international story. Suddenly I was not just being called names on twitter in the UK, but on the pages of newspapers from the US to Australia, by celebrities, and across Youtube channels. There were journalists on my doorstep. I was receiving messages of abuse, and of support, from around the world.
And lies began to spread, such as that I had harassed a trans co-worker. My name was smeared in order to smear JK Rowling.
Nothing prepares you, or your family, for this.
So much has changed in the year since then. Thousands more women and men have stood up to say that sex matters; that we will not be silenced by fear and bullying.
JK Rowling speaking up broke the public silence. The vicious responses, and her courage and steadfastness in the face of that abuse shone more light. Each time this cycle played out more people paid attention and more resolved to speak up.
2020 was the year of “gender critical” legal cases
There have been legal actions (many still ongoing -my appeal is in April) across education, employment, healthcare, prisons, policing, and on the underlying guidance on equality law:
In January Keira Bell, a young woman who had been put on puberty blocking drugs as a teenager before going on to cross-sex hormones and surgery, joined together with Mrs A, the mother of an autistic girl to bring a case challenging the Tavistock and Portman NHS Foundation Trust. The case was about whether a child under 18 can really consent to such an experimental and life changing course of treatment.
In February Harry Miller’s judicial review against Humberside Police and the College of Policing came to court. After someone reported tweets as transphobic Harry had been visited at work by a police officer who told him to ‘check his thinking’. Judge Julian Knowles emphasised the human right of freedom of expression, protected by Article 10 of the European Convention on Human Rights. He said the effect of the police turning up at your work because of your political opinions must not be underestimated.
“To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”
Harry won against Humberside Police, but lost against the College of Policing who tell police forces to record complaints of “non-hate crime incident” against people’s names. The case goes on with the appeal to be heard on March 10th and 11th.
On the same day in February, Kate Scottow was given a criminal conviction under the Communications Act, for using a public communications network to “cause annoyance, inconvenience and anxiety”. She had posted a handful of disrespectful tweets including one where she called a trans activist, who has sued or is suing several gender critical women as well as Mumsnet and Graham Linehan, a “pig in a wig”. I sat in court with 30 other women and heard with shock as the judge disregarded the protections of Article 10 and admonished Kate for her tweets and told her “we teach our children to be kind”.
In April a 13 year old girl started legal action to bring a case to judicial review (a judicial review is case in which a judge reviews the lawfulness of a decision or action made by a public body) challenging her local education authority, over their “trans toolkit” policy for schools. The guidance said that male pupils who identify as girls can use female toilets, changing rooms and dormitories on school trips, and take part in girls’ sport. The teenager said this gives her “no right to privacy from the opposite sex”. Oxfordshire County Council did not want to defend the guidance in court. In May they announced they had withdrawn it and would instead wait for national guidance.
Another teenage girl also started legal action about guidance given to schools, this time against the Crown Prosecution Service for their ‘LGBT+ hate crime guidance. The guidance reinforces sexist and homophobic stereotypes, curtais free speech and makes female students feel unsafe in schools by allowing male pupils to use female toilets and changing rooms. CPS did not want to defend it in court and withdrew the guidance “for review”. The claimant has challenged this further asking how the CPS can act impartially on this when they are part of the Stonewall Champions programme.
In May Raquel Rosario Sánchez, a PhD student from the Dominican Republic started a case against Bristol University for failing to protect her from bullying and harassment. After she chaired a meeting of Woman’s Place UK in 2018 she has faced a sustained campaign of organised and aggressive bullying by student activists, with the university failing to apply its own disciplinary processes and instead protecting the bullies. Raquel says
“My case is about how an elite university treats its students when nobody is watching”
In June Allison Bailey, a criminal defence barrister, a lesbian, a lifelong campaigner for equality, and a survivor of child sexual abuse launched a case against her legal chambers and against Stonewall after they had put her under investigation when she helped to create the LGB Alliance. Allison wrote about why it was important to retain clear language, rules and laws about the distinctions between men and women. She wrote about her concerns about children being treated with puberty blockers, about the threats women receive for speaking up, about the vilification, abuse, boycott, character assassination and cancellation used to shut down debate. After receiving complaints Crowd Justice said Allison’s case page breached its terms and conditions and removed it. Nevertheless she raised over £60,000 in a few hours. Her case will be heard next year.
In July Sonia Appleby, a social worker and psychotherapist who is the Safeguarding Children Lead at the Tavistock and Portman NHS Foundation Trust announced that she had launched a whistle-blowing case against her employer. She alleges that because she raised safeguarding issues that health and safety of patients was being endangered she had been besmirched by the trust and that safeguarding concerns were kept from her. You can watch the newsnight report. As Sonia said
“This is not an “anti-trans” case. I am supportive of the transgender community and their right to seek services that are both supportive and safe.”
In August Ann Sinnott launched a judicial review against the Equality and Human Rights Commission, the UK’s statutory equalities body whose job it is to sort all this out to protect everybody’s rights. Instead their guidance encourages employers and service providers to think that they cannot straightforwardly provide single sex services. As Ann says
“This isn’t a case about an individual woman who has undergone harassment and discrimination ..but each and every one of the legal actions for which we have gladly dipped into our purses to support, was made necessary because of a misinterpretation and misapplication of the law. Longstanding unlawful guidance, from the very entities that are responsible for overseeing equalities in the UK, created the situations that led to all past and current legal actions.”
The same month For Women Scotland launched a judicial review over the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018. The act was aimed at improving the representation of women on the boards of Scottish public authorities, but during stage two of the legislative process, following representations from Scottish Trans Alliance, the definition of “woman” in the bill was altered to include people who have not changed their legal sex to ‘female’ using a gender recognition certificate (GRC) but to include anyone who adopts the pronouns she and her. FWS believes it sets a dangerous precedent.
In September James Caspian announced that he was taking his challenge against Bath Spa University’s refusal to the European Court of Human Rights. The university had refused to allow him to research people who reverse gender reassignment for fear of controversy.
In October a case came to court brought by a female prisoner who says she was sexually assaulted by a transwoman prisoner. Her case challenges the Ministry of Justice over its policy of placing some males who identify as women in women’s prisons. Karon Monaghan QC, for the prisoner, said that MoJ policies, seemed to use the terms “sex” and “gender” interchangeably. The prisoner with a GRC had convictions for serious sexual offences against women but was housed in the general population of a women’s prison.The hearing was adjourned to resolve the issue of how much of internal MoJ discussions about the policy should be disclosed. The case will come before the high court next year.
Katie Alcock continued to wait patiently for her day in court. Katie is a girl guide leader. She was expelled from Girlguiding after a lengthy and stressful investigation, because she expressing the view that Girlguiding had gone wrong on policies relating to transgender individuals.. She thought the policy needed rethinking to put safeguarding first. Her case is ‘stayed’ behind mine because of the precedent that my appeal will set on gender critical belief and the Equality Act.
Another teenager ‘Miss B’ has launched a case against the College of Policing because she says she must “self-censor” in the classroom in discussions about sex and gender for fear having a “non-hate crime incident” recorded against her name, if a teacher or fellow pupil report her as demonstrating hostility. Sarah Phillimore, a barrister, has launched a case against the College of Policing for its recording of “non-crime hate incidents”
In November we learnt that the application for judicial review on the Labour Party’s policies of allowing male candidates who identify as women to take places on all-women-short-lists had been refused (although this is being challenged).
Keira Bell breaks through
In December the High Court ruled in the Keira Bell case. The case considered the recent unprecedented rise in the referral rate of teenagers, particularly girls, the evidence base and objective science for puberty blockers and the ability of children to consent. The High Court ruled that puberty blockers and cross-sex hormones are experimental treatments which cannot be given to children in most cases without application to the court. The court noted several times the “surprising” lack of data collected by the Tavistock to assess and monitor the experimental treatment (the Tavistock has applied for an appeal).
Keira Bell said:
“My hope was that outside of the noise of the culture wars, the court would shine a light on this harmful experiment on vulnerable children and young people. These drugs seriously harmed me in more ways than one and they have harmed many more, particularly young girls and women.
This judgment is not political, it is about the protection of vulnerable children. Please read it carefully. It exposes a complacent and dangerous culture at the heart of the national centre responsible for treating children and young people with gender dysphoria.”
The judgment vindicates the work of people like Stephanie Davies Arai, who has been working on this for five years on this on calling for an evidence based approach, and the clinicians who have blew the whistle on their concerns. The organisation Stephanie founded Transgender Trend was given permission to intervene in the case on the basis of their expertise, while Stonewall and Mermaids were not.
Finally in mid-December, Kate Scottow’s criminal conviction was quashed. The judges declared that the case should never have been prosecuted and the judges reasoning in finding Kate guilty was deficient. They said it would be a “serious interference” with the right of free speech if
“those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted”.
The toll of these legal cases for the individuals involved and their families is significant.
We have all, in different ways, challenged institutions that have given into fear and irrationality, and I am proud to be amongst these cases.
Debate, evidence and clear language is worthy of respect in a democratic society
Laws, policies and rules should not made behind closed doors through ‘policy capture’ by the loudest lobby groups, but nor should law have to be made by judges and through the extraordinary efforts of individual claimants.
Ultimately what these cases are trying to do is reclaim the public square for open, clear debate, and to ensure the legislature, government and public and official bodies (and underpinning them; universities and research organisations and the media) do their job of researching, debating, scrutinising and upholding laws and evidence-based policies.
The COVID crisis has exposed how fragile and vulnerable these institutional systems are.
We have made progress, and there are signs that the tide is turning away from ‘self ID’ and towards an evidence based approach to reconciling rights:
- Self ID: In September the UK government finally announced that it had dropped its plan for sex self ID — this was a victory for grass roots campaigns like Woman’s Place UK, Fairplay for Women and Standing for Women that had mobilised a democratic debate in the face of intimidation by activists, and cowardice by established organisations.
- Schools: In October the Department for Education published new guidance for schools on relationship and sex education. It discourages schools from “suggesting that children might be a different gender based on their personality and interests or the clothes they prefer to wear.“and says that while teachers should always seek to treat individual students with sympathy and support they “should not suggest to a child that their non-compliance with gender stereotypes means that either their personality or their body is wrong and in need of changing.” Importantly it emphasises working together with parents in line with safeguarding.
- Sport: In October World Rugby announced that after following an in depth review of the evidence of the effect of testosterone reduction males, it was concluded that safety and fairness cannot presently be assured for women competing against transwomen in contact rugby. It set guidelines which (at an international level at least) allow women to play contact rugby without having to compete with male players who identify as women.
- Single sex services: In December MSPs overwhelmingly voted for a six word amendment “for the word gender substitute sex”, so that survivors of rape and sexual assaults could clearly ask to be examined by a person of a particular sex.
Questions are being asked in the House of Commons and the House of Lords, and the regional assemblies, every political party has an organised caucus of members calling for protection of sex based rights, gender critical voices have been invited (albeit under hostile questioning) to give evidence to the Women and Equalities Select Committee.
This is starting to look like democratic debate.
But efforts to shut down debate are unrelenting
There are worrying new proposals for expansive hate crimes legislation in Scotland, and for new communications offences laws in England and Wales that threaten to criminalise speech, including “misgendering”. While my case was never about refusing to use preferred pronouns in the workplace (which I did not do) the proposals to criminalise causing ‘emotional harm’ through talk about gender identity and sex would have a deeply chilling effect on freedom of speech.
Taken together, the legal cases expose a pattern of how disproportionate responses are triggered by even most carefully expressed criticism of gender ideology and are used to shut down scrutiny and debate where it is desperately needed. Any speech using the words man, woman, male, female and associated pronouns not based on gender ideology can be deemed ‘hateful’. and transphobic. This denies the ability to talk about reality
Now that our legal cases are getting traction they are attracting the same disproportionate response. Commentators Christine Burns and Naomi Wolf have repeatedly asserted without evidence, that gender critical crowd funders in the UK are funnels for a vast transatlantic flow of money from right-wing US evangelical Christian groups.
Last week the Reuters Foundation published an “investigation” into the crowd funders for ‘gender critical’ legal cases. The investigation consisted of adding up the totals, and printing quotes from people willing to smear us. “money is being used to bully,” they said, and “It certainly feels like there (are) deeper pockets”. Stonewall then repeated these claims.
Reuters (whose stated principles include trust and impartiality) even boasted that they got the All Women Shortlists crowdfunder closed down by reporting it for hatred in the course of their investigation.
Reuters Foundation has an annual budget of $13 million and mobilises an additional $38 million in pro bono legal support for cases it favours. Stonewall has an annual budget of $8 million. Major law firms like Dentons and Clifford Chance have signed up to work pro bono on strategic litigation for “trans rights” (by which they mean self ID). Dentons, working with the Reuters Foundation wrote a report advising campaigners on how they should be secretive in their lobbying to change the law so that children can change their legal sex without the involvement of medical professionals or parents.
The gender critical crowdfunders in the UK have average pledges of under £30 each, adding up, through thousands of individual supporters, to around $1 million in three years.
This is an impressive amount of money for a set of grassroots activists and reflects the strength of feeling of the growing numbers who have supported us. I know which group feels like it has deeper pockets though (another recent smear article, this one published by Yahoo described us as an ‘anti-trans group’ and donors to our crowd funders as “a phalanx of wealthy, white, middle-class cis women (of whom billionaire J.K. Rowling is queen).”)
Reuters Foundation say they ”believe in the power of free, fair and informed societies around the world.”
So do I.
I don’t think you get this by shutting down debate, denying ordinary women access to justice or using the power of your international brand to smear them, and promote fear in others.
Merry Christmas and thanks for all your support
Dear Phlanx Members (and our queen, if she is reading)
I am grateful for all your support (whatever your race, class, nationality, sex, politics or religion).
I am grateful for the continued excellence and commitment of my legal team Anya Palmer, Peter Daly and Ben Cooper QC and the support of my family and friends.
I hope you all have as good a Christmas as you can in these circumstances.
There is lots to do next year.
Onwards and upwards!